Middle Ground

How to evaluate corporate scienter continues to be an unresolved issue in securities litigation.  Some courts, notably the Fifth Circuit (and arguably the Eleventh Circuit), have taken the position that a court can only “look to the state of mind of the individual corporate official or officials who make or issue the statement (or order or approve it or its making or issuance, or who furnish information or language for inclusion or the like).”  Conversely, the Second, Seventh, and Ninth Circuits have suggested that under some circumstances plaintiffs should be allowed to plead collective corporate scienter, i.e., that some corporate officer knew the statement was false even if the plaintiff is unable to adequately allege that any particular corporate officer knew the statement was false.

In In re Omnicare, Inc. Sec. Litig., 2014 WL 5066826 (6th Cir. Oct. 10, 2014), the court addressed this circuit split and concluded that “a middle ground is necessary.”  On the one hand, the court found that the Fifth Circuit’s approach might encourage companies to engage in “tacit encouragement and willful ignorance.”  On the other hand, a broad application of collective scienter (which the Sixth Circuit itself had seemed to endorse in an earlier decision) creates the possibility “that a company could be liable for a statement made regarding a product so long as a low-level employee, perhaps in another country, knew something to the contrary.”

Accordingly, the court adopted the following formulation for evaluating corporate scienter, which it took from a law review article on the topic.

The state(s) of mind of any of the following are probative for purposes of determining whether a misrepresentation made by a corporation was made by it with the requisite scienter under Section 10(b): . . .

a. The individual agent who uttered or issued the misrepresentation;

b. Any individual agent who authorized, requested, commanded, furnished information for, prepared (including suggesting or contributing language for inclusion therein or omission therefrom), reviewed, or approved the statement in which the misrepresentation was made before its utterance or issuance;

c. Any high managerial agent or member of the board of directors who ratified, recklessly disregarded, or tolerated the misrepresentation after its utterance or issuance . . . .

The court concluded that this formulation was consistent with the Sixth Circuit’s earlier decision, would properly create potential liability for “corporations that willfully permit or encourage the shielding of bad news from management,” and would “protect corporations from liability – or strike suits – when one individual unknowingly makes a false statement that another individual, unrelated to the preparation or issuance of the statement, knew to be false or misleading.”

Although the Sixth Circuit describes its formulation as a “middle ground,” critics may question whether it is really different than the Fifth Circuit’s standard, and, if it is, whether it will accomplish the court’s stated goals.  Notably, sections (a) and (b) of the formulation are simply a restatement of the Fifth Circuit’s formulation – agents who made, approved, or directly contributed to the misstatement.  So the key difference is section (c), but the court offers no guidance as to how lower courts are supposed to determine whether a plaintiff has adequately plead that an agent “ratified, recklessly disregarded, or tolerated” the misstatement after it was made.  Section (c) also goes beyond the stated goal of describing which agent’s state of mind should be examined.  Finally, what does the court see as the significance of a corporate officer recklessly disregarding or tolerating the misstatement after it was issued?  Scienter is usually assessed as of the time of the alleged misstatement.  If a corporate officer later discovers that a corporate statement is false, he may have a duty to correct that misstatement (which could provide a separate basis for securities liability), but that does not establish the misstatement was made with scienter.  Stay tuned.

Holding: Dismissal affirmed (among other pleading deficiencies, the plaintiffs failed to adequately plead corporate scienter under the new formulation).